Ann Althouse, Late Night Confessions in the Hart & Wechsler Hotel
47 Vand. L. Rev. 993 (1994)
LATE NIGHT CONFESSIONS IN THE HART
AND WECHSLER HOTEL
Ann Althouse*
47 Vand. L. Rev. 993 (1994)†
I. INSIDE AND OUT
II. THE BUILDING PROJECT
III. SLIPPING OUT INTO THE TWILIGHT
IV. ABANDON FOUNDATION: EXPLORE CYBERSPACE
V. ABANDON MONUMENTS: WRITE ESSAYS
APPENDIX
perhaps it is time to throw the book aside, as having had its day, and start again on something new.
– Doris Lessing1
I. INSIDE AND OUT
Chief Justice Rehnquist visited my law school last year to deliver a lecture entitled
“The Future of Federal Courts.”2 The University Theater filled: overdressed alumni in the
front rows, respectful students in the balcony, camouflaged professors here and there. I
sat in the middle and hunched over a folded-up sheet of legal paper. I scribbled notes and
hoped for some insight into the tangled mass of problems I had made my life’s work.
Would the Chief Justice perhaps explain the Court’s new habeas corpus jurisprudence? I
wanted a little accounting for Butler v. McKellar,3 in which he had *994 denied federal
court relief to a man who faced the death penalty after a conviction based on a confession
that the Court’s own case law would, without question, exclude.
The Chief told some jokes, elaborated on his ties to Wisconsin, and discoursed at
length about the workload of the courts. The issues were neutral, administrative,
managerial, structural.
*
Professor of Law, University of Wisconsin. J.D., 1981, New York University School of Law; B.F.A. 1973, University of
Michigan. I would like to thank Barry Friedman for inviting me to participate in this panel and for his supportive comments on a draft
of this piece.
†
Copyright © 1994 by the Vanderbilt Law Review, Vanderbilt University School of Law; Ann Althouse
1
Doris Lessing, Introduction to THE GOLDEN NOTEBOOK at xxii (Bantam, 1973).
2
William H. Rehnquist, speech printed as Seen in a Glass Darkly: The Future of the Federal Courts, 1993 WIS.L.REV. 1.
3
494 U.S. 407 (1990). This case, along with its predecessor, Teague v. Lane, 489 U.S. 288 (1989), has provoked the greatest
outpouring of criticism from federal courts scholars that I can remember. See Ann Althouse, Saying What Rights Are In and Out of
Context, 1991 WIS.L.REV. 929; James S. Liebman, Apocalypse Next Time?: The Anachronistic Attack on Habeas Corpus/Direct
Review Parity, 92 Colum.L.Rev. 1997 (1992); Richard H. Fallon, Jr. and Daniel J. Meltzer, New Law, Non-Retroactivity, and
Constitutional Remedies, 104 HARV.L. REV. 1733 (1991); Kathleen Patchel, The New Habeas, 42 HASTINGS L. J. 941 (1991); Robert
Weisberg, Future Trends in Criminal Procedure: A Great Writ While It Lasted, 81 J. CRIM. L. 9 (1990); Marc M. Arkin, The
Prisoner's Dilemma: Life in the Lower Federal Courts After Teague v. Lane, 69 N.C.L.REV. 371 (1991); Larry W. Yackle, The
Habeas Hagioscope, 66 S. CAL.L. REV. 2331 (1993); Patrick E. Higginbotham, Notes on Teague, 66 S. CAL.L. REV. 2433 (1993);
Susan Bandes, Taking Justice to Its Logical Extreme: A Comment on Teague v. Lane, 66 S. CAL.L.REV. 2453 (1993); Barry Friedman,
Habeas and Hubris, 45 VAND. L. REV. 797 (1992); Ann Woolhandler, Demodeling Habeas, 45 STAN.L. REV. 575 (1993).
Ann Althouse, Late Night Confessions in the Hart & Wechsler Hotel
47 Vand. L. Rev. 993 (1994)
“Did he say anything provocative?” asked a colleague who had missed the speech.
“He never got any more provocative than to say he’s against diversity.”
My friend was shocked. “He’s against diversity!!??”
“Diversity jurisdiction,” I said, realizing she was not a proceduralist.
Outside the theater, a group of protesters chanted and banged, trying to disrupt the
speech. They happened to be pro-choice activists, but they represented all the many
persons who have found themselves, over the years, aggrieved by the Court’s rulings.
They had no way of knowing that, inside, the Chief’s speech was taking a pristinely
procedural track, devoid of any substance capable of sparking protest. The speech
continued calmly, the audience continued to listen, and only the noise of the protesters
intruded on our privileged space.
Mounted on the ceiling of the theater is a long acoustical panel, with lighting fixtures
and decorative strips that seem to form a human face, a strange character who overlooks
whatever proceedings take place below. I imagined the ceiling face as the collective spirit
of those who had suffered under the force of jurisdictional doctrine, which seemed so
harmless in the hands of our honored speaker, who had himself devised much of the
pristine procedure that caused and masked suffering.4 The speech continued on the
procedural channel, *995 with the protest noise mere static drifting in from the
substantive channel. The face kept its solemn vigil. I still scrawled my notes, though I
knew I would not receive the accounting I wanted. The members of the audience seemed
to enjoy a strong sense of their status as insiders. They were in the tasteful theater, in the
legal profession, listening to the highest ranking member of that profession, looking
forward to shaking hands with him at the reception that would follow at the Edgewater
Hotel.
After the Chief Justice finished his speech, the audience filed out and reassembled in
a second cavernous room. The reception room was neatly arrayed: white-clothed tables,
set with scores of water and wine glasses and white napkins origami’d into absurd peaks.
At one end of the room stood a dais, where the fêted Chief soon would bask in adulation.
In the lobby, the crowd of buzzing receptioneers grew. Rumor had it that the Chief’s car
had arrived in the underground parking garage; soon the lobby elevator would open and
he would begin to circulate through the gracious crowd.
I did not witness the ensuing celebration: I had impulsively slipped outside and into
the twilight. It felt good to leave.
4
See, for example, Butler, 494 U.S. 407 (defining a "new rule" of constitutional law very broadly, thus removing a large number
of important cases from federal habeas review); Whitmore v. Arkansas, 495 U.S. 149 (1990) (restricting standing doctrine in a context
that prevented any review of trial proceedings in a death penalty case); Edelman v. Jordan, 415 U.S. 651 (1974) (finding Eleventh
Amendment immunity in suits for retrospective relief against state officials for constitutional violations). See also DeShaney v.
Winnebago County Dep't of Social Serv., 489 U.S. 189 (1989) (narrowing the meaning of due process and denying recovery against
state actors who failed to rescue a child from his abusive father). For a decision written by Chief Justice Rehnquist that restricts access
to federal courts but may reflect genuine recognition of human suffering, see Moore v. Sims, 442 U.S. 415 (1979) (expanding
abstention doctrine and excluding broad constitutional attack on a state statute designed to protect children from abusive parents),
discussed in the text accompanying notes 77-79.
Ann Althouse, Late Night Confessions in the Hart & Wechsler Hotel
47 Vand. L. Rev. 993 (1994)
II. THE BUILDING PROJECT
I once wrote a law review article about the Eleventh Amendment5 (haven’t we all?).
In my quest to explain/unveil/analyze/critique Supreme Court doctrine, I wrestled with
the notion of a legal fiction, as legal fictions figure quite large in this area of law.6 I ran
across the old Lon Fuller article, Legal Fictions.7 Fuller, a legal process scholar aligned
with Hart and Wechsler, the authors of our central text,8 conceptualized *996 legal
fictions as scaffolding around a building under construction.9 Judges have begun the
enterprise of building a new legal structure, but they lack the language and the workedout logic needed to write a final, well-reasoned version of the doctrine they sense they
need. So they sketch out a temporary version, to be replaced as experience produces a
new conceptualization of the law: the building within the scaffolding. Eventually the
building will stand and the scaffolding will be torn down and discarded.
Straining to understand Ex Parte Young, I saw no signs of any coming coherent
doctrine. I saw a doctrine once presented as cogent reasoning now openly called a legal
fiction.10 It was Lon Fuller’s scaffolding all right. But the scaffolding had no building.
Nothing was even under construction. Indeed, the whole enterprise of constructing a
building had long been abandoned. Young was only a legal fiction – take it or leave it –
just one more ugly landmark in the field I had chosen to study: not a nice, admirable
finished building, but a gangly, old scaffolding, wobbly and patched in a few quite
noticable places, lacking the dignity to collapse.
We know the ugly landmarks: McCardle11 and Klein,12 Younger13 and Mitchum,14
Stone v. Powell15 and Wainwright v. Sykes,16 Teague17 and Butler,18 Edelman,19
Pennhurst,20 and Union Gas,21 Los Angeles v. Lyons.22 And centrally located in this
5
Ann Althouse, When to Believe a Legal Fiction: Federal Interests and the Eleventh Amendment, 40 HASTINGS L. J. 1123 (1989).
In Ex Parte Young, 209 U.S. 123 (1908), the Court allowed suit against the Attorney General of Minnesota to enjoin the
enforcement of an unconstitutional statute. Even though the injunction worked to prevent the state from enforcing the statute and even
though there was no reason to sue the Attorney General other than to have this effect, the Court stated that the Attorney General
somehow ceased to be the state – and thus could not claim Eleventh Amendment immunity – when he sought to enforce an
unconstitutional statute. Moreover, the Attorney General must be viewed simultaneously as the state (for the Fourteenth Amendment
to apply) and not the state (for the Eleventh Amendment not to apply).
7
25 ILL.L.REV. 363, 513, 877 (1930, 1931) (published in 3 parts).
8
Henry M. Hart, Jr. and Herbert Wechsler, THE FEDERAL COURTS AND THE FEDERAL SYSTEM (Foundation, 1st ed. 1953).
9
Fuller, 25 ILL.L.REV. at 525 (cited in note 7).
10
See, for example, Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89 (1984).
11
Ex Parte McCardle, 74 U.S. 506 (1868) (characterizing congressional power over Supreme Court jurisdiction as complete,
regardless of motive).
12
United States v. Klein, 80 U.S. 128 (1871) (rejecting congressional power over Supreme Court jurisdiction when used as a
"means to an end").
13
Younger v. Harris, 401 U.S. 37 (1971) (creating an abstention doctrine deferring to state court capacity to resolve federal law
challenges to a state statute).
14
Mitchum v. Foster, 407 U.S. 225 (1972) (straining statutory interpretation to make it possible to enjoin state courts from
enforcing state statutes challenged under federal law, rather than allowing the state court to determine the federal question).
15
428 U.S. 465 (1976) (denying federal habeas review of Fourth Amendment exclusionary rule claims in most cases).
16
433 U.S. 72 (1977) (allowing state-law procedural defaults to bar federal habeas review in most cases).
17
489 U.S. 288 (barring assertion of "new rules" of constitutional law at the habeas stage, with rare exceptions).
18
494 U.S. 407 (articulating a broad conception of "new rule" in applying the doctrine announced in Teague).
19
415 U.S. 651 (denying the applicability of Ex Parte Young to requests for retrospective relief against state officials).
20
465 U.S. 89 (denying the applicability of Ex Parte Young to claims based on state law).
6
Ann Althouse, Late Night Confessions in the Hart & Wechsler Hotel
47 Vand. L. Rev. 993 (1994)
woeful territory, the *997 absurd structure of Marbury,23 which we gaze upon for
inspiration at the start of our annual trek through the ruins. Oh yes, we can ridicule and
criticize. We become righteously indignant: who among us has not pointed out the dead
bodies at the foundations of some of the more dangerous structures? But we dutifully
make the trek year after year.
Over time you develop a means of presenting the strange, unfolding story of the
Eleventh Amendment (or standing or abstention or habeas corpus or whatever you’re
doing today). You get it to hang together for the students. You write your article about it,
adding your little spin, your new perspective, your new piece of historical evidence, your
perception of an incoherence or a coherence that nobody else has perceived quite that
way before. Your colleagues ask what you’re writing about, you name the doctrine, and
they pronounce it, inevitably, “arcane.” You feel more and more marginalized. You’re
beginning to feel almost perverse with your concentration on threshold doctrines, forever
concerned only with getting into court – permanently confined to the antechamber,
forever denied substance. Sustenance! It’s a watery diet indeed.
Quite a few years ago a prominent District of Columbia Circuit judge visited my law
school: he was going to give a talk about a case he had just worked on concerning a
subtle point of political question doctrine. He questioned the assembled group about their
interest in federal courts doctrine and appeared astounded that I, a mere assistant
professor at the time, was the only one there who worked the Federal Courts territory.
Why, this is the truly fascinating material! This is where the most powerful legal minds
can find the most profound intellectual rewards! This is the very pinnacle of elite
scholarship! Had we not heard? Indeed, this is what I thought at the time: to be a Federal
Courts professor was to enjoy special status within the academy.
Perhaps at some law schools, professors with high aspirations and high opinions of
themselves line up for the chance to teach Federal Courts, but at my law school nobody
else has given a hoot about teaching Federal Courts for nearly ten years. The faculty
willingly granted me the course upon my arrival, as if to say, “Good! You *998 take it!
We don’t want any of that nonsense!” A judge who had taught law at a prestigious East
Coast school once said to me, “How did you get them to let you to teach Federal Courts?”
If she only knew! A colleague of mine, professing no interest whatsoever in what I had
fancied a highly desirable field of study, scoffed: “I knew when I was a student that
Federal Courts was the ultimate law school mind game!” When I took a year’s leave, the
school hired a federal magistrate to cover the course.
21
Pennsylvania v. Union Gas Co., 109 U.S. 2273 (1989) (addressing the question of the scope of Congress’s power to abrogate
Eleventh Amendment immunity).
22
461 U.S. 95 (1983) (examining standing restrictions disabling federal courts from addressing the problem of fatal police
chokeholds).
23
In Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803), the Court both asserts the power (by announcing the power of judicial
review and the power to mandamus the President) and disclaims it (by finding no jurisdiction and conceding that there are some
"political" questions left to the discretion of the President); the Court identifies a fundamental duty to provide a remedy whenever a
right is violated, yet sends Marbury away without a remedy even though it finds his right violated; the Court addresses the merits of
the case first and then determines that it has no jurisdiction.
Ann Althouse, Late Night Confessions in the Hart & Wechsler Hotel
47 Vand. L. Rev. 993 (1994)
The elite pinnacle seems more and more like a cramped outpost. Instead of the
intellectual leaders of our generation – like Henry Hart and Herbert Wechsler – we seem
like the few surviving adherents to the cult they founded. Here we are at our annual ritual.
The legal edifice where we once felt so privileged has become stultifying. We may envy
our substance-driven colleagues. We may envy the pro-choice noisemakers outside. They
are out in the world and we are inside out of the world. We have built for ourselves
structures of reason and doctrine and spend our lives inside these structures. Of course,
we know the buildings have flaws; indeed, we make it our work to search for the flaws,
point them out, and propose repairs, renovations, remodelings, and new additions. But we
remain dedicated to the ongoing building project and sense that to abandon it would be to
abandon scholarship.
I confess a certain degree of affection for our structures and frameworks. I would
scarcely confine my thoughts here today in a structure of metaphorical language if I
didn’t find structures compelling. In fact, as I write, the structure of my words holds my
attention far more powerfully than any ideas I mean to express. Though I have rankled
when non-Federal Courts colleagues have wisecracked that this is a course for people
who like to do crossword puzzles, I must admit that our doctrinal and ideological
manipulations can become a sort of intellectual game or puzzle. And I confess that I take
pleasure in solving the complex problems, fitting the words together.
I find satisfaction in teaching and writing about legal concepts with structural
qualities. I also teach the course my school calls Constitutional Law I; that is, the
constitutional law covering the structural matters of federalism and separation of powers.
The issues of substantive rights are taught by someone else the next semester. A
constitutional scholar in our political science department told me he would love to teach
Con Law at the law school. When I asked whether he preferred the “rights course” or the
“structure course,” he responded instantly, “the rights course.” Who wouldn’t? Who
doesn’t prefer to talk about the meaning of the rights and not the dull old *999 federalism
and separation of powers material? I had to confess that I do! Why should I enjoy shifting
about the formless sands of rights when I can build structures? When I teach I use hand
gestures that betray the intense visualization I have of ideas as concrete objects –
structure – building blocks. Quite without planning, I move to different spots in the
territory of the classroom stage, as if these spots are somehow the loci of various
ideological constructions.
The metaphor of the building project seems almost inescapable. We begin with that
tract of land we call our “field,” and there we construct and build our arguments and
theories.24 When I made my first foray into the field of Federal Courts, an exploration
into the validity of deferring to state courts in the name of federalism, I called my article
“How to Build a Separate Sphere.”25 The federal and state judicial systems seem like
24
For the classic treatment of metaphors in thought processes, see the endlessly useful George Lakoff and Mark Johnson,
METAPHORS WE LIVE BY (U. of Chicago, 1980), especially at 47 (stating that "[t]heories (and arguments) are buildings").
25
Ann Althouse, How to Build a Separate Sphere: Federal Courts and State Power, 100 HARV.L.REV. 1485 (1987). The notion
was that cases like Michigan v. Long and Pennhurst informed the states as to how they could construct separate sovereignty for
themselves. See Michigan v. Long, 463 U.S. 1032 (1983), and Pennhurst, 465 U.S. 89. States do not enjoy immunity from federal
intrusion simply because they are states, but by performing in the prescribed manner, they could claim it; that is, "build a separate
Ann Althouse, Late Night Confessions in the Hart & Wechsler Hotel
47 Vand. L. Rev. 993 (1994)
distinct structures: I can’t help picturing courthouse buildings. The concept of jurisdiction
seems to demand the use of architectural metaphors like “the threshold” (which tends to
get raised or lowered) and “the courthouse door” (which tends to get widened, narrowed,
or slammed shut).
A casebook itself is architectural: it structures the course, it is published by
Foundation Press. The Hart and Wechsler book26 – that “monumental landmark”27 – is
the foundation upon which the rest of us build our scholarship. But why do we continue
this building project? What motivates us?
In the fifties, we genuinely may have shared their vision.28
In the sixties, many of us entered into a new phase, spurred on by an architect-Court
that quickly raised new structures, structures that seemed to need the support of the
scholarly community. The *1000 rights-driven expansions of federal jurisdiction – Baker
v. Carr,29 Fay v. Noia,30 Henry v. Mississippi,31 Dombrowski v. Pfister32 – generated
plentiful work for us then.
In the seventies, outrage may have motivated us: clumsy new artisan-judges moved
onto the scene and staged a slow-down, abandoned some of the projects, and threatened
to topple key structures.33 While the pure constructive joy had drained out of our work,
there was passion in the critique and urgency in the preservation project. The belief that
we had seen the Golden Age34 still warmed us, and we remained optimistic about our
ability to return to the work of the Warren Court after this inappropriate, destructive
interlude. We wrote articles to the Burger and Rehnquist Courts pointing out their
mistakes, illuminating their confusion, pointing the way back from their “wrong turns.”35
We thought we could help them understand the true plans.
sphere" for themselves. Thus, under Long, if a state court clearly rests its decision on an independent and adequate state ground, the
Supreme Court will not review the case, 463 U.S. 1032, and under Pennhurst, if a state legislature extends rights to its citizens that go
beyond available federal rights, it will be able to confine litigation about those state-created rights to the state courts, 465 U.S. 89.
26
Hart and Wechsler, THE FEDERAL COURTS (cited in note 8).
27
Akhil Reed Amar, Law Story, 102 HARV.L. REV. 688, 691 (1989).
28
For a discussion of the scholarship in the Hart and Wechsler casebook’s Legal Process tradition, see generally id.
29
369 U.S. 186 (1962) (limiting the applicability of political question and standing doctrine, rendering problems of
malapportionment judiciable).
30
372 U.S. 391 (1963) (limiting the deference of federal habeas corpus to state-law procedural defaults to instances in which
rights claimants "deliberately bypassed" state procedures).
31
379 U.S. 443 (1965) (limiting Supreme Court deference to state- law procedural defaults to instances in which rights claimants
"deliberately bypassed" state procedures).
32
380 U.S. 479 (1965) (permitting a federal court to enjoin a state court criminal prosecution).
33
Bob Woodward and Scott Armstrong, THE BRETHREN 212-13 (Simon and Schuster, 1979) (cartoon showing the Burger Court
Justices demolishing a building representing rights).
34
For use of the term "Golden Age" to describe the Warren Era, see George Kannar, Citizenship and Scholarship, 90
COLUM.L.REV. 2017, 2020 (1990); Owen M. Fiss, The Law Regained, 74 CORNELL L.REV. 245, 249 (1989). See also William N.
Eskridge, Metaprocedure, 98 YALE L. J. 945 (1989) (reviewing Robert M. Cover, Owen M. Fiss, and Judith Resnik, PROCEDURE
(Foundation, 1988)) (characterizing Procedure as premised on an idealization of the Warren Court). I recognize that my use of the
term Golden Age to designate the Warren Court Era conflicts with Professor Amar's use of the term to designate the heyday of the
Legal Process school in his excellent history of the three editions of the Hart & Wechsler casebook. See Amar, 102 HARV.L.REV. at
691 (cited in note 27). My experience with the law professoriate suggests that the Warren Court, far more than Legal Process
scholarship, generated admiration and devotion on a deep psychic level. Scholars may have sensed, however, that they ought to
express their admiration in the respectable and legitimating language of Legal Process.
35
See David L. Shapiro, Wrong Turns: The Eleventh Amendment and the Pennhurst Case, 98 HARV.L.REV. 61 (1984).
Ann Althouse, Late Night Confessions in the Hart & Wechsler Hotel
47 Vand. L. Rev. 993 (1994)
The nineties are here now. All of the Justices from the Golden Age have moved on.
The clumsy artisans now fancy themselves architects. They propose sweeping new plans
that scarcely refer to the plan of the Golden Age. Pointing out deviations from the old
plan seems more and more outmoded. The metaphor of a Court that has simply taken a
“wrong turn” no longer seems descriptive. We might close ranks and persevere in writing
articles demanding a return to the Warren Court’s plan. But over the years this work has
grown tiresome: *1001 there is little room for creativity. Moreover, the Golden Age
seems less and less like the True Law and more and more like a historical period, the
result of a social context and intellectual fashions that no longer hold sway. Even if the
Court were repopulated with liberals, one must doubt whether they would simply return
to the old project.
What can motivate us now? Is there not despair? Metaphors of death and destruction
have taken hold, and we say things like, “The Court has killed habeas corpus!” We
suggest symposium topics like “The Death of Federal Courts.” Does anyone think of our
blighted landscape as a place for prime intellectual achievement anymore? Do we wander
like fools through the ruins, raving about a glorious past that recedes toward the
vanishing point?
III. SLIPPING OUT INTO THE TWILIGHT
I began my work in this field about a decade ago, as a teacher, quite simply, trying to
find some coherence, some sense in the notoriously complex doctrine. Finding a scheme
of coherence, a framework, really is the process of understanding. To merely observe that
the field is chaotic, arcane, or incoherent is to decline the work of understanding. That
rejection of the subject matter may be a fair and appropriate reaction: witness my
colleagues who regard Federal Courts as a “mind game” or a “crossword puzzle.”
(Indeed, vast numbers of laypersons have this reaction to the entire subject of law.) But
assuming we accept the work of teaching Federal Courts, we must search for frameworks
and coherencies as a necessary means of thinking about the subject. At the very least, we
need heuristic devices.
Over the years I developed a theory, an explanation of the proper basis for allocating
cases to the state and federal courts,36 and I have used this theory in class and in a number
of articles. In applying this theory, I would receive and review the Supreme Court
decisions, hang them out to dry on my framework, and see how they looked. Of course
the decisions themselves provided the basis for the framework: this is always a two-way
process. One could scarcely come up with a theory of federal courts that had nothing to
do with the case law. A theory is refined out of the case law and other articles that have
been *1002 refined out of the case law; the case law then is used to support the theory;
36
The most comprehensive statement of my framework is set forth in Ann Althouse, Tapping the State Court Resource, 44
VAND. L. REV. 953 (1991) (arguing that federal jurisdictional doctrine, viewing state courts as a resource to be tapped, should defer
not to the state’s interest in being left alone to pursue its own policies, but to its capacity to enforce federal rights and to develop
alternative rights in state law).
Ann Althouse, Late Night Confessions in the Hart & Wechsler Hotel
47 Vand. L. Rev. 993 (1994)
the theory is turned back on the case law; and because of the process of refining the case
law, the theory shows why some case law deserves praise and some demands criticism.
This entirely circular, inbred process has gone on for so long, in so many diverse voices,
and in such lofty and abstract terms that we can regard it as a culture and feel that it is a
rather substantial thing – not at all embarrassing or ridiculous. So we operate within this
culture and can continue to write articles ad infinitum in this mode.
The legal community is like a dreaming brain that constantly fires off impulses and
then works furiously to resolve the chaos, to impose the order of a story, to create
meaning.37 The mind seeks order, structure: of course, when we read complex material
we impose structures. How else could we read? Of course, when we write we build
structures. How else could we write? But if we are too naggingly aware that this is just a
structure we impose to make sense of complexity, we, in effect, awaken from the dream.
The dream state imbued our thoughts and writings with the look of substantial culture. To
awaken is to see our work as embarrassing or ridiculous. To awaken is to leave the
scholarly community, to slip out of the reception hall and into the twilight.
If the Court writes well, following the guidance of Hart and Wechsler,38 we sleep
soundly. If it writes somewhat badly or does somewhat disturbing things, we dream and
impose order. But there are times when the Court slaps me awake and I can no longer
carry out the task of organizing the material into frameworks. Butler v. McKellar39 gave
me insomnia. The Court had announced in Teague v. Lane that “new rules” of
constitutional law could no longer provide the basis for relief at the habeas stage,40 and,
in Butler, the Court gave a shockingly broad meaning to “new rule” – so that any rule not
clearly established at the time the conviction became final, any rule still subject to
reasonable debate, could no longer be considered on habeas.41 My dream-state view of
the matter was that a “new rule” of constitutional law could not exist, short of a new
amendment to the *1003 Constitution,42 or at least that rights evolve steadily and rarely
burst forth in a manner recognizable as “new.”43 But Chief Justice Rehnquist wrote:
[T]he fact that a court says that its decision is within the “logical compass” of an
earlier decision, or indeed that it is “controlled” by a prior decision, is not
conclusive for purposes of deciding whether the current decision is a “new rule”
under Teague. Courts frequently view their decisions as being “controlled” or
“governed” by prior opinions even when aware of reasonable contrary
conclusions reached by other courts.44
37
This model of dreaming is not Freud’s but Hobson’s. See J. Allan Hobson, THE DREAMING BRAIN (Basic Books, 1988).
For a discussion of the Legal Process conventions reflected in the Hart and Wechsler book, see Amar, 102 HARV.L.REV. at 691
(cited in note 27); Richard H. Fallon, Jr., Reflections on the Hart and Wechsler Paradigm, 47 VAND. L.REV. 953 (1994); Michael
Wells, Behind the Parity Debate: The Decline of the Legal Process Tradition in the Law of Federal Courts, 71 B.U. L.REV. 609, 61929 (1991).
39
494 U.S. 407.
40
489 U.S. 288. There are two rarely applicable exceptions. See id. at 311-13.
41
Butler, 494 U.S. at 415.
42
This is, of course, the originalist position. See, for example, William H. Rehnquist, The Notion of a Living Constitution, 54
TEX.L.REV. 693 (1976) (rejecting the notion of a "living Constitution").
43
This is standard Legal Process thinking. See, for example, Butler, 494 U.S. 407, 417 (Brennan, J., dissenting).
44
Id. at 415.
38
Ann Althouse, Late Night Confessions in the Hart & Wechsler Hotel
47 Vand. L. Rev. 993 (1994)
Notice that Chief Justice Rehnquist openly takes the position that the Legal Process
methodologies are a scam. Butler sent a jolt through the dreaming professorial synapses,
and many articles resulted, demanding a return to the various frameworks that various
authors had propounded over the years.
It is the violence underlying all of this posturing that causes my insomnia.45 Butler
dies. The Court performs a balancing test in such a way that Butler’s impending death is
never put in the scales. Only the neat, pristine matters of federal interest (the workload of
the federal courts) and state interest (finality) are weighed. It seems repellent to fall back
into the Federal Courts dream under the circumstances. The academy’s strange remove
from risky, dangerous human life should unsettle us. I won’t say we stand apart from real
life – I acknowledge that this too is life – but we lead a life nearly immune from the
“distinct and palpable”46 injuries that befall the characters in the cases we read. They are
not fictional characters, though as we read about them we sit in the same comfy chairs we
sit in when we read novels. They genuinely suffer and frequently die, slipping through
the fictional web of doctrine upon which we train our eyes.
The field of Federal Courts has a particular tendency to intensify the alienation of the
academic. Endlessly we contemplate complex doctrinal frameworks, capacious, wavery
abstractions like federalism, and perverse axioms like “avoid unnecessary questions of
constitutional *1004 law.” And yet, in the background, clamoring for our psychic
attention are Adolph Lyons, choked nearly to death by Los Angeles police,47 and Horace
Butler, sent to his death by a state that had the good fortune to deny him a lawyer before
the Supreme Court announced a minute extension of law that squared precisely with the
issue in his case.48 The outside world leaks messily onto our intellectual frameworks.
Procedure is not pristine.
How should we respond?
We may redouble our efforts to construct intellectual frameworks that account for the
suffering and violence that lies behind the intricate doctrines we analyze and critique. Or
we may grow weary of our distance and rebel at the thought of composing another
traditional article. We may drag on, spurred by the need for tenure, the representations we
made when we applied for the grant, or even the impulsive acceptance of a speaking
engagement once shrouded in the haze of the future and now imminent.
And here I am, having accepted this speaking engagement and agreed to tell the
weary travellers what direction we ought to take for the future. I am deeply embarrassed
at the presumptuousness and arrogance inherent in standing up here as a consequence of
agreeing some time ago to play the role of prophet! I rather wish someone would tell me
the true direction and give me some ideas. After all, if I knew the future destination, I'd
be home pounding out the articles, making my reputation by getting there first, not
45
The classic discussion of the violence of adjudication is Robert M. Cover, Violence and the Word, 95 YALE L.J. 1601 (1986).
The Court uses these conventional adjectives to denote injuries substantial enough to provide a litigant with standing to sue in
federal court. See, for example, Warth v. Seldin, 422 U.S. 490, 501 (1975).
47
Los Angeles v. Lyons, 461 U.S. 95 (1983).
48
Butler, 494 U.S. 407.
46
Ann Althouse, Late Night Confessions in the Hart & Wechsler Hotel
47 Vand. L. Rev. 993 (1994)
helping the competition. But I want to reclaim humility by stating that I do not think that
a true direction exists, that in the past we made the mistake of believing we were engaged
in building monuments to the truth, and that our weariness now comes from the
unavoidable recognition that the project is futile. I would like to promote diversity as a
replacement for belief in true direction. It is, I argue, not only a more appropriate
expression of the way we understand law today (as opposed to in the fifties and sixties)
but a much more exciting and interesting approach to writing and teaching.
The course in Federal Courts is the starting point for the scholarship. Through the
course Hart and Wechsler defined our field, and through the course we continue to have
the power to define and redefine it. I think the course is a ground for ongoing
experimentation. Teaching Federal Courts generates ideas for writing about Federal
Courts, although for the most part it is only these finished, polished, *1005 often bloated
or over-edited articles that we share with each other. Only our students participate in the
lively ongoing experimentation with ideas, and we may have no colleagues at our schools
who know much of anything about the issues we want to debate. Being a processoriented person, as Federal Courts scholars tend to be, I want to recommend not
necessarily more articles about the judicial process but a scholarly process, designed to
overcome the tedium of the usual articles, to open to each other the vital debate that tends
to occur only at the teaching level, and to take advantage of computer technology.
IV. ABANDON FOUNDATION: EXPLORE CYBERSPACE
I invite you to throw aside the oversized, overpriced, blue pebble-textured object
manufactured by Foundation Press, the publishing company pretentious enough to
contribute to my architectural metaphor. Choose the forty or so cases you feel most
stimulated teaching. Delete the parts that bore you. Delete any footnotes you don’t
absolutely love. Put them in an order that seems interesting, productive, likely to generate
new thinking. Put the digitalized material on the computers in your library and let the
students download it onto their own discs for free. Laserprint and xerox copies for
students who want hard copy (it will cost a third of what a casebook costs, or less). As
you teach, type in your notes and questions after the cases – continually write next year’s
text. At the end of the semester, reshuffle the cases as new connections occur to you. Add
to your mix of cases. You can put in all the new Supreme Court cases each year and, after
the next semester, delete the ones that did not stimulate or produce new insights. You
may find that the order you choose for the cases is quite different from the one
conventionally chosen in Hart and Wechsler and the casebooks that follow its model.
I should confess that I have never taught from the Hart and Wechsler casebook,
though it was the choice of my Federal Courts professor (Larry Sager) when I took the
course in the Spring of 1981. I rejected it out of hand in the Fall of 1984 when I began
teaching: the Third Edition49 had yet to appear and there was not even a current
49
Paul M. Bator, et al., Hart and Wechsler’s THE FEDERAL COURTS AND THE FEDERAL SYSTEM (Foundation, 3d ed. 1988).
Ann Althouse, Late Night Confessions in the Hart & Wechsler Hotel
47 Vand. L. Rev. 993 (1994)
supplement for the Second Edition.50 I used Martin Redish’s book,51 *1006 which was
more up to date and followed the Hart and Wechsler model, in shorter form. I later
switched to Low and Jeffries,52 again because it was new – it also came with the promise
of an annual supplement – and had the familiar Hart and Wechsler organization in a
shorter form. Why did I not take on the Third Edition of Hart and Wechsler when it
appeared in 1988? I felt it was too overloaded with information to serve the students
well.53 Note that it is famously intimidating even to teachers.54 One can so easily reach
the point in Federal Courts where the students become outraged and almost incredulous
about the amount of doctrine. In teaching the course, I try to draw students into the ideas
and rhetoric and methodologies used by the Court in dealing with the large topics of
federalism, separation of powers, and constitutional rights. I try to give them juicy cases
and chewable doctrine-chunks so they can be up and “talking Federal Courts” quickly.
The doctrinal overload – the endless note cases obsessively adding one little twist after
another – represses debate. It suggests to the students (not to mention the teachers) that
they can never know enough to have an opinion worth listening to.
So I recommend devising a manageable, big-idea-oriented course, tailored to your
own interests and insights.55 Experiment. Must Marbury56 come first? Must we always
begin with The Man and His Commission? Most students have been milled through
Marbury in Con Law by the time they get to us and may not reread it or have *1007
much patience with its historical and legal complexities. Can you plunge into Federal
Courts without the classic aphorisms?57 Would putting federalism before separation of
powers jog some new thinking?
Although I sometimes begin with Marbury, lately I've started with Monroe v. Pape,58
for several reasons that appeal to me at the moment:
1. It has an immediate, timely context capable of stirring passion:
50
A book missing the 1983 and 1984 cases – Allen v. Wright, 468 U.S. 737 (1984); Hawaii Hous. Auth. v. Midkiff, 467 U.S. 229
(1984); Pennhurst, 465 U.S. 89; Long, 463 U.S. 1032; and Lyons, 461 U.S. 95 – was absurdly out of date.
51
Martin H. Redish, FEDERAL COURTS: CASES, COMMENTS AND QUESTIONS (West, 1st ed. 1983).
52
Peter W. Low and John Calvin Jeffries, Jr., FEDERAL COURTS AND THE LAW OF FEDERAL-STATE RELATIONS (Foundation, 1987).
53
Professor Mullenix noted in 1989 that the Third Edition of Hart & Wechsler was the longest casebook available on the market.
See Linda S. Mullenix, God, Metaprocedure and Materialism at Yale, 87 Mich.L.Rev. 1139, 1140 n.7 (1989) (reviewing Cover, Fiss,
and Resnik, PROCEDURE (cited in note 34)).
54
See Amar, 102 HARV.L.REV. at 690 (cited in note 27).
55
Compare Judith Resnik, " Naturally" Without Gender: Women, Jurisdiction, and the Federal Courts, 66 N.Y.U. L.REV. 1682,
1735-36 (1991) (criticizing the canon of cases generally covered in casebooks for their exclusion of feminist issues). I appreciate
assaults on the canon and critiques based on exclusion that are aimed at existing packaged, commercial materials. I have engaged in
one myself, albeit in the field of Evidence. See Ann Althouse, The Lying Woman, the Devious Prostitute, and Other Stories from the
Evidence Casebook, 88 NW. U. L.REV. 914 (1994). I think the greatest contribution to packaged Federal Courts materials would be a
concerted effort to forefront the effect of race on the case law. I say this because I think it is apparent that race has influenced the
history of Federal Courts doctrine, beginning (at least) with the frequently willfully avoided Ableman v. Booth, 62 U.S. (21 How.) 506
(1859) (asserting a strong federal power against a state court that found the Fugitive Slave Law unconstitutional). See Hart &
Wechsler, THE FEDERAL COURTS at 380 (cited in note 8) (using the later Tarble's Case, 80 U.S. (13 Wall.) 397 (1872), to illustrate the
doctrine established in Ableman). While I appreciate attacks on published materials, those centralized compendia of conventionalism,
I want to emphasize the liberation of decentralization in composing one's own materials.
56
5 U.S. (1 Cranch) 137 (1803).
57
For example: "It is emphatically the province and duty of the judicial department to say what the law is," id. at 177; "[A]
government of laws not of men," id. at 163; and "The very essence of civil liberty certainly consists in the right of every individual to
claim the protection of the laws, whenever he receives an injury." Id.
58
365 U.S. 167 (1961).
Ann Althouse, Late Night Confessions in the Hart & Wechsler Hotel
47 Vand. L. Rev. 993 (1994)
13 Chicago police officers broke into [the Monroes’] home in the early morning,
routed them from bed, made them stand naked in the living room, and ransacked
every room, emptying drawers and ripping mattress covers. ... Mr. Monroe was
then taken to the police station and detained on “open” charges for 10 hours,
while he was interrogated about a two-day-old murder, ... he was not taken before
a magistrate, though one was accessible, ... he was not permitted to call his family
or attorney, ... he was subsequently released without criminal charges being
preferred against him.59
2. It connects jurisdictional questions with the enforcement of individual rights.
3. It conveys an urgent sense of the desirability of federal courts: students tend to see
why Monroe would want to use the federal and not the state courts to sue the Chicago
police in 1961.
4. It forces students to consider a statutory text (42 U.S.C. § 1983) with a distinct and
important legislative history (Reconstruction) that will inform their understanding of
federalism.
5. It brings the issue of race immediately to the foreground and makes it a standard
topic for discussion throughout the course.
6. It forces students to think about the relationship between substantive and
procedural law, because Section 1983 exists in a gray area between substance (it grants
no rights but provides a vehicle for asserting rights) and procedure (it does not grant
jurisdiction, but its interpretation has a powerful jurisdictional effect).
7. Through a comparison of Justice Douglas’s majority opinion and Justice
Frankfurter’s dissenting opinion, it introduces the central debate about whether federal
courts should be regarded as the primary enforces of the rights of individuals or whether
state courts *1008 carry out the primary function, with federal courts serving as a backstop, activated by state court failure.
Monroe reveals the complexity of jurisdictional problems and the rhetoric they
generate. Here we find strong statements in favor of judicial activism, phrased in terms of
respect for statutory texts and the intent of a Congress ninety years in the past, with the
conspicuous absence of any reference to the civil rights movement of the present. And we
find judicial restraint, from a Justice (Frankfurter) who purports to be deeply concerned
about present-day governmental abuse (“Modern totalitarianisms have been a stark
reminder ...”60), defended in compelling functional terms:
Federal intervention, which must at best be limited to securing those minimal
guarantees afforded by the evolving concepts of due process and equal protection,
59
60
Id. at 169.
Id. at 209 (Frankfurter, J., dissenting).
Ann Althouse, Late Night Confessions in the Hart & Wechsler Hotel
47 Vand. L. Rev. 993 (1994)
may in the long run do the individual a disservice by deflecting responsibility
from the state lawmakers, who hold the power of providing a far more
comprehensive scope of protection. Local society, also, may well be the loser, by
relaxing its sense of responsibility and, indeed, perhaps resenting what may
appear to it to be outside interference where local authority is ample and more
appropriate to supply needed remedies.61
I do not present any of these ideas as necessary or correct, and I do not stigmatize
either of what I call the “federal court primacy position” and the “state court primacy
position.” Instead, I strive to get as many ideas out on the table as I can, to develop many
strands of discussion, and to enable the students to “talk Federal Courts.”
I follow Monroe with Dombrowski 62 and Younger v. Harris.63 I used to go right to
Younger, because of its distinct contrast with Monroe. Younger draws its federalism not
from Reconstruction, but from the founding period, expressed in that wonderfully obtuse
and naïve-sounding line, “one familiar with the profound debates that ushered our
Federal Constitution into existence is bound to respect those who remain loyal to the
ideals and dreams of ‘Our Federalism.’”64 Younger has the fine disclaimer – to be
referred to again and again throughout the course – of “blind deference to States’
Rights.”65 And it displays a normative vision of federalism that has some appeal with or
without the originalist pedigree: *1009
the National Government will fare best if the States and their institutions are left
free to perform their separate functions in their separate ways. ... [Federalism,] a
system in which there is a sensitivity to the legitimate interests of both State and
National Governments, and in which the National Government, anxious though it
may be to vindicate and protect federal rights and federal interests, always
endeavors to do so in ways that will not unduly interfere with the legitimate
activities of the States.66
But by the third time through the materials, I found I had come to rely on
Dombrowski so much in explaining Younger that I decided to insert it, even though it
would blunt the contrast between Monroe and Younger. Moreover, Dombrowski
introduces the voice of Justice Brennan, whose vision of the federal courts permeates the
case law.67 His position stands in important contrast to that of Justice Frankfurter, who, in
my present set of materials, is the most prominent voice for judicial restraint and
deference to the states. Dombrowski keeps the issue of race in the forefront. It involves a
61
Id. at 243.
Dombrowski v. Pfister, 380 U.S. 479 (1965).
63
401 U.S. 37 (1971).
64
Id. at 44.
65
Id.
66
Id.
67
Justice Brennan also wrote the majority opinion in the other central Warren Era federal courts cases, Baker, 369 U.S. 186; Fay,
372 U.S. 391; and Henry, 379 U.S. 443; and has written major dissenting opinions on many of the federal courts issues handled
controversially by the later Courts. See, for example, Atascadero State Hosp. v. Scanlon, 473 U.S. 234 (1985) (Eleventh Amendment);
Teague, 489 U.S. 288 (habeas corpus); Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804 (1986) (federal question
jurisdiction); Allen v. Wright, 468 U.S. 737 (1984) (standing).
62
Ann Althouse, Late Night Confessions in the Hart & Wechsler Hotel
47 Vand. L. Rev. 993 (1994)
striking pattern of abuse by Louisiana state officials in the form of bad faith prosecutions
and threats of prosecution against civil rights workers.68 It sets up a jurisdictional
problem – whether federal courts should rescue federal rights claimants from state court
proceedings – in a context in which intervention seems particularly compelling, and it
creates the impression that perhaps federal courts will take up such intervention as a
matter of course. This impression is, of course, dispelled in Younger, where we learn that
deference to state courts is “the normal thing to do.”69
Dombrowski and Younger also present an introduction to ideas about who may invoke
the federal courts’ power, an issue that will thread through the course. Justice Brennan, in
Dombrowski, encourages litigation to explore the meaning of constitutional rights. He
develops the overbreadth doctrine and remarks that “[i]f the rule were otherwise, the
contours of regulation would have to be hammered out case by case – and tested only by
those hardy enough to risk criminal prosecution.”70 Younger, on the other hand, boots out
for lack of standing *1010 a number of plaintiffs who want to challenge California’s
Criminal Syndicalism Act.71 Farrell Broslawsky, the Los Angeles Valley College history
instructor who felt “inhibited” in “teach[ing] about the doctrines of Karl Marx or
read[ing] from the Communist Manifesto,”72 is a memorable character who sticks with us
as a symbol of the sort of person a restraint-bound Court will not tolerate. Even John
Harris, Jr., prosecuted under the California statute, will not be rescued from the “cost,
anxiety, and inconvenience of having to defend against a single criminal prosecution.”73
Rights claimants will have to be “hardy” after all.
Younger, to my way of thinking, leads directly to Mitchum.74 Mitchum reasserts the
strong Reconstruction Era vision of the need for federal courts and seems, at least
initially, to be squarely at odds with Younger. It presents the questions why the Court in
Younger would create a freestanding, judge-made doctrine when an explicit statute
appeared so clearly to govern and why the Court would make the all-but-laughable
interpretation that Section 1983 implicitly “expressly authorize[s]”75 an exception to the
Anti-Injunction Act. I love the juxtaposition of Younger and Mitchum and love these
questions in part because I think there is an utterly sensible answer (in a word:
Dombrowski76) and in part because they force the students to resolve their perplexity by
developing a theory of how the Court “does jurisdiction.”
68
Dombrowski, 380 U.S. at 482.
Younger, 401 U.S. at 45.
70
Dombrowski, 380 U.S. at 487.
71
Younger, 401 U.S. at 41-42.
72
Id. at 39-40.
73
Id. at 46.
74
Mitchum v. Foster, 407 U.S. 225 (1972).
75
Id. at 243.
76
In my view, the Court would not tolerate a flat ban on all injunctions of ongoing state proceedings because it would undercut a
core aspect of the role of the federal courts, enforcing federal rights when state courts are inadequate. Its intolerance was so strong that
a clear statute could not stop it from making jurisdiction what it thought jurisdiction should be. The Court still did not think that
federal courts should routinely enjoin state court proceedings, however, for state courts on the whole should shoulder the work of
enforcing federal rights that arise within their own proceedings. The Younger doctrine as a judge-made doctrine could be tailored to
the distinction between state courts that deserved deference and those that did not. See Ann Althouse, The Humble and the
Treasonous: Judge-Made Jurisdiction Law, 40 CASE W. RES. L.REV. 1035, 1039-51 (1990).
69
Ann Althouse, Late Night Confessions in the Hart & Wechsler Hotel
47 Vand. L. Rev. 993 (1994)
The sequence of my introductory chapter, which is not the slightest bit inevitable,
continues with:
• Moore v. Sims,77 which shows the applicability of the Younger doctrine to civil
proceedings, introduces the possibility that the challenged state law might serve a higher
value (here, protecting children) *1011 than the federal rights used to challenge it78 and
raises questions about the context in which courts ought “to say what the law is.”79 The
Simses brought a classic survey-the-statute-book complaint: one can argue that this is
good, because it produces a swift announcement of what rights exist, or that it is bad,
because it forces the court to determine the law in an overly abstract context. The Sims
Court’s rejection of broadly framed litigation contrasts nicely with Dombrowski and leads
to the most profound questions about how the meaning of rights should develop. Is the
incremental, evolutionary mode ideal?
• Railroad Commission of Texas v. Pullman Company80 picks up a key thread from
Sims: if the federal court proceeds to hear the attack on state legislation, it will have to
interpret the state statute, and the interpretation will never be reviewed by the
authoritative state court.81 Pullman introduces a second abstention doctrine,82 confronts
us with a fact pattern involving racial discrimination, and gives us a second dose of
Frankfurterian rhetoric.83 Again, the notion of shaping *1012 the context for “say[ing]
what the law is” can be explored: if there is “undoubtedly ... a substantial constitutional
issue,”84 why wouldn’t a federal court have a duty to face up to it, and not be cowed by
the “sensitive area of social policy”85 and the potential for “rigorous congressional
restriction”86 of judicial power?
77
442 U.S. 415 (1979).
The challenged Texas Family Code created a procedural structure designed to protect children from abusive parents. The father
in the case appears almost certainly to have been abusive, since one of the children was hospitalized for eleven days after an incident
that occurred at the child’s school. Id. at 419. The parents objected to the state’s procedures under the federal Due Process Clause. Id.
at 422.
79
Marbury, 5 U.S. (1 Cranch) at 177. Note how this question connects to the issue of what is "new law" in Butler v. McKellar,
494 U.S. 407 (1990). I follow Sims in my current draft with a long quote from Justice Scalia’s provocative article, The Rule of Law as
a Law of Rules, 56 U. CHI.L.REV. 1175 (1989). Scalia disdains the incremental approach and would like to structure jurisdiction (at
least Supreme Court jurisdiction) to maximize the opportunities for propounding broadly applicable rules. Id. at 1185-87. I think the
Scalia article is especially useful in forestalling simplistic conclusions about the "liberal" and "conservative" approach to jurisdiction.
80
312 U.S. 496 (1941).
81
Id. at 499-500.
82
I do not bother with any abstention doctrines beyond Younger and Pullman, other than a brief note on Colorado River Water
Conservation District v. United States, 424 U.S. 800 (1976), because, to me, they overload the course with indigestible complexity.
On the other hand, if one wanted to cut back somewhere else, an extended exploration into all the forms of abstention doctrine could
be very productive. Certainly, one positive value of a book like Hart and Wechsler’s is that it allows a teacher to select from a huge
range of cases. The book is so long that one is forced to select from the whole. This may lead you to think that all the cases you would
want to cover are already in the book and thus you need only construct an original syllabus with page citations to the classic casebook.
In fact, I began with this premise, only to find that half of the cases I wanted to cover in full were not printed as full cases. Moreover,
editors necessarily edit their cases down: you may find that casebook editors have omitted the very language that connects the cases
for you. The process of accumulating the cases yourself differs in many other ways from the process of cutting back from someone
else’s materials. It is inherently more constructive (yes, the building metaphor) and thus more likely to stimulate your creative
processes. One’s attitude tends to be different. Instead of thinking: what can I afford to cut? must I really give them all this? can I
really expect them to digest all these note cases?, you think: will this case contribute to the experience I want my students to have this
semester? No casebook editor preparing materials for a commercial publisher is going to think like this.
83
"Few public interests have a higher claim upon the discretion of a federal chancellor than the avoidance of needless friction
with state policies." Pullman, 312 U.S. at 500. The first dose, of course, was the Monroe dissent.
84
Pullman, 312 U.S. at 498.
85
Id.
86
Id. at 501.
78
Ann Althouse, Late Night Confessions in the Hart & Wechsler Hotel
47 Vand. L. Rev. 993 (1994)
• Hawaii Housing Authority v. Midkiff 87 presents a nicely pragmatic contrast to
Pullman. Justice O’Connor refuses to be bamboozled by the lawyers’ characterization of
the state law question as ambiguous (and thus warranting Pullman abstention). Moreover,
like Sims, Midkiff shows us a state that, while it may challenge the limit of what the
federal Constitution permits, seems to be doing something good – and remarkably
progressive (redistributing land).88 At this point, students can see that Pullman abstention
is “the exception and not the rule” though Younger abstention remains “the normal thing
to do.” I like to ask them why this should be the case, in part because I think there is a
good answer to that question.89
• City of Los Angeles v. Lyons,90 like Monroe, presents an appalling example of police
brutality.91 It makes the question of race unavoidable as it elaborates the requisites of
standing doctrine, a topic begun in Younger and Sims, and provokes inquiry into whether
jurisdictional doctrine operates covertly, essentially deciding the merits. Lyons also
presents a puzzling suggestion that federalism values counsel against enjoining the police
chokehold: I use this to explore the notion of deference, contrasting deference to a court
with deference to a police department.92
• Stone v. Powell93 throws habeas corpus into the mix and returns to the context of
unreasonable searches and seizures, the issue *1013 in Monroe. Because Powell, unlike
Monroe, was prosecuted,94 he had, albeit unwillingly, already made a trip through the
state court system. So the question becomes, do federal rights claimants have some sort
of entitlement to a hearing in federal court? Do federal rights only take their proper scope
when a federal judge says what they are? Two alternatives are presented: one ought to be
able to relitigate in federal court (still the general rule on habeas95) or relitigation ought to
take place only when the state court has failed (the exception to the rule for Fourth
Amendment exclusionary rule claims).96
• Allen v. McCurry97 completes the point made in Stone. McCurry refuses to create a
special exception to collateral estoppel for Fourth Amendment claims brought under
87
467 U.S. 229 (1984).
Id. at 232-34.
89
The "normal thing" is to stay with a single case and to assume that the court handling that case can do a good enough job of
dealing with any law applicable to it; the exceptional thing is to litigate on two fronts or to assume a court cannot deal with law other
than its "own" law. Younger avoids two cases and assumes state courts can deal with federal law. 401 U.S. 37. Pullman faces two
cases and assumes federal courts cannot deal with state law. 312 U.S. 496.
90
461 U.S. 95 (1983).
91
Id. at 98 (discussing a police chokehold that had caused a number of deaths, used even in the absence of a threat of severe
bodily harm).
92
This is an issue that recurs in Butler when the Court refuses to intrude on a judge who makes a "reasonable" assessment of
what the applicable law is and analogizes this refusal to the "good faith" immunity accorded police enforcing an invalid search
warrant. See Butler, 494 U.S. at 14-15. More can be, or should be, expected of a court than the police.
93
428 U.S. 465 (1976).
94
Compare id. at 469 (concerning a habeas petitioner convicted of murder in state court who challenged a police search that
produced substantial evidence) with Monroe, 365 U.S. at 169 (concerning a § 1983 damages claim against police who conducted a
search in which no evidence was found and consequently no prosecution followed).
95
See Withrow v. Williams, 113 S.Ct. 1745 (1993); Wright v. West, 112 S.Ct. 2482 (1992).
96
Stone, 428 U.S. 465 (presenting the question of whether the state court offered a "full and fair opportunity to litigate").
97
449 U.S. 90 (1980).
88
Ann Althouse, Late Night Confessions in the Hart & Wechsler Hotel
47 Vand. L. Rev. 993 (1994)
Section 1983, which, because of Stone, escape federal habeas corpus review.98
References to Reconstruction’s transformed version of federalism fail. Even though a
rights claimant making the initial forum selection can choose federal court under
Monroe,99 there is no entitlement to federal court once the state court has already acted.
• Preiser v. Rodriguez100 ends my first chapter, heightening a number of ideas about
federalism. Like McCurry, it shows the interaction between Section 1983 and habeas
corpus. This claim for the return of a prisoner’s “good time” credits, which the state had
revoked as a punishment for possession of contraband,101 would have fit literally into
either statutory vehicle. Why is the rights claimant forced to use habeas corpus, and thus
to bring his claim in state court first pursuant to the habeas exhaustion requirement? Isn’t
the exhaustion requirement inapplicable on the ground that it reflects the assumption that
the rights claimant will have been in front of a state court judge at the time the alleged
violation occurred?
I feel that, as a teacher, it is not my place to resolve matters into a coherent
framework. I consider such an approach boring, if not domineering. I like to think of
Federal Courts as “Shakespearean.” Only a bad playwright would have one character (the
playwright’s *1014 mouthpiece) spout all the good, insightful lines and make everyone
else a foil. Shakespeare remains vital because he did not have an overt political agenda,
and he did not suppress conflict and complexity. Similarly, Federal Courts is an arena of
human behavior, a convergence point for all sorts of vital ideas, a forum for ongoing
debate. The cases and doctrines represent human aspirations, foibles, absurdity,
generosity, empathy, detachment, weariness, idealism. The judges are characters, the
litigants characters, and we too are characters. This is my outlook now. If I search for an
architectural metaphor, I picture a grand hotel – I’ll call it the Hart and Wechsler Hotel –
a place through which anyone may pass, carrying intriguing narrative and conceptual
baggage. Happy to observe and interpret the transient characters, I have lost interest in
building any permanent structures for them.
Let me take my approach to casebook-making a step further, in a direction that aligns
with my affinity for decentralization and multiplicity. I have not discussed my materials
here because I think they represent the best ordering of the cases, but because they
represent a liberating experiment. There are times when I find this experiment so exciting
that I want to share it with others, but whenever I think of transforming it into a
marketable product I am forced to admit that what is so exciting and natural to me may
well seem perverse, alien, and confusing to someone else.102 In any event, to organize it
for mass production, to bind it in a conventional blue or brown hardcover, seems to miss
the point. What I like about my materials is their personal quality, tailored to my
idiosyncratic array of insights, my level of toleration for complexity, and my love of role
playing (I tend to do monologues in the personas of Justices Brennan, Frankfurter, and
98
Id. at 103-05.
Id. at 98-99.
100
411 U.S. 475 (1973).
101
Id. at 480-81.
102
For a discussion of the commercial pitfalls of innovative casebooks, see Laura Kalman, LEGAL REALISM AT YALE 1927-1960
(U. of N.C., 1986); Mullenix, 87 MICH.L.REV. 1139 (cited in note 53).
99
Ann Althouse, Late Night Confessions in the Hart & Wechsler Hotel
47 Vand. L. Rev. 993 (1994)
many more). I like the mutability of a book on computer disc. I like the casual quality of
a looseleaf.103
We should view commercial casebooks as obsolescent, to be replaced by computer
technology, particularly for the course that is one’s primary field of research. Traditional
casebooks can serve as "training wheels" for new teachers, until they have the experience
to gather their own materials together as described above. But the radical step would be
to build up a database of teaching materials on the Internet. As we experiment with
different cases, questions, and *1015 materials, we should share the results, and respond
to each other, incrementally building up a resource that each of us can download,
customize, use, edit, add to, and ultimately upload. The cases are in the public domain,
why should anyone make a profit selling them? Law review authors seem quite willing
and eager to grant permission to reprint excerpts of their articles. And why should we
compulsively horde the various insights that we use in class? Shouldn’t the future Federal
Courts construction project take place in cyberspace? Instead of waiting for each other to
produce a bloated, over-edited article (which we may copy and then never read), we
should link up in the lively forum that technology has now made possible. Our
colleagues' lack of interest in our "arcane" field could become a nonissue.
V. ABANDON MONUMENTS: WRITE ESSAYS
Teaching and the continual composing of teaching materials create a fertile ground
for your ideas – your ideas, the ideas that genuinely reflect your background, knowledge,
and inclinations. Instead of hewing to the narrowly procedural or propounding fully
formed normative theories and lambasting the Court for failing to adhere to them, move
to a more easy-going level, admitting into your thought processes any relevant
information or ideas, any substantive law that occurs to you, any evidence about history,
society, science, or any conceivable theory from another discipline. Abandon the
outmoded project of constructing primly reductionist frameworks and demanding that
doctrines be designed to fit these frameworks. Stop stultifying your creativity with a
mindnumbing sense of obligation to read all the articles that everyone else or everyone
else who seems important has ever written. You will probably never write anything
genuinely readable and you will probably never genuinely enjoy writing unless you read
widely,104 use what you know, and stop censoring yourself. Write essays that play with
ideas, not in an attempt to show everyone the way, but in the spirit of inclusion and
ferment, not to control what others may say or what courts may do, but simply to enrich
and enliven our impoverished field. *1016
103
Of course, Henry Hart, when tempered with Albert Sacks instead of Herbert Wechsler, liked a looseleaf too. See Henry M.
Hart, Jr. and Albert Sacks, THE LEGAL PROCESS: BASIC PROBLEMS IN THE MAKING AND APPLICATION OF LAW (Cambridge, Mass.,
Tentative ed., 1958).
104
To quote Doris Lessing again:
There is only one way to read, which is to browse in libraries and bookshops, picking up books that attract you, reading
only those, dropping them when they bore you, skipping the parts that drag – and never, never reading anything because
you feel you ought, or because it is part of a trend or a movement.
Lessing, Introduction to THE GOLDEN NOTEBOOK at xix (cited in note 1).
Ann Althouse, Late Night Confessions in the Hart & Wechsler Hotel
47 Vand. L. Rev. 993 (1994)
The sense that Federal Courts is dead comes from our life-suppressing method of
scholarship. I still believe that Federal Courts is fertile territory, full of richness and
complexity. It is a bustling hotel full to capacity with all sorts of interesting characters
and their ideological baggage. It is the location of a crisis point in the law, where we can
see procedure, structures, and the most profound matters of individual rights, social
conditions, and political choices in a state of conflict. I have come to see Federal Courts
this way from teaching, from restructuring my course in opposition to the conventional
compartmentalization, from writing things that my nagging internal critic denounces as
“sententious,” and from “read[ing my] way from one sympathy to another, learning to
follow [my] own intuitive feeling about what [I] need.”105
Of the many Federal Courts articles I have written, the one people talk to me about is
the one I wrote after giving up a steady diet of standard Federal Courts articles and began
reading whatever books caught my attention, often reading only parts, and always
suspended in the middle of reading dozens of books at a time.106 Reading in this way, I
often felt derelict in my duties – after all, I had stacks of xeroxed articles in my office I
had never read. To assuage my work-ethic guilt, I constantly assured myself that any
reading counts as work. While most of these books had no noticeable relationship to
Federal Courts or even the law, other than the fact that I, a Federal Courts person, had
chosen them, I frequently found places to cite them in my articles, and I felt that I gained
by exposure to things capable of shifting my mind in some surprising way.
I don’t say any of this to recommend myself, but to recommend the process. I offer this
Essay, imperfect as it is, as an example of something I would like to read: a personal
analysis of my connection to Federal Courts, a confession of my own psychic ties to
issues of structure, and my own tendency to contemplate the substance of rights from the
comfortable distance jurisdictional doctrine provides. Are we not human beings, who
weave our own personalities into the material we compose? Do you never feel alarmed
when you think of your life of involvement with concepts like unripeness, restraint, and
abstention? Do you never crack a smile at your own behavior as you devise a framework
of reason designed to demonstrate that the Supreme Court of the United States is
confused? Do you never armchair-psychoanalyze the writers whose work you read? I
invite confession *1017 and personal narrative: how did you come to entertain and
embrace the ideas to which you are now wedded?
Write “essays” instead of “articles.” This is not mere label-switching. Calling what
you write an essay can bring you into touch with its character as a personal expression, its
immediacy, and can make you more aware of its literary quality. An essay is something
readable and provocative, not a turgid authoritative disquisition intended to prove what a
learned, unassailable authority figure you turned out to be. If you are a pompous
windbag, if you write bad prose, be embarrassed. If you find yourself reading the bad
prose of a pompous windbag, have the self-respect to throw it aside. Feel some sense of
responsibility to the ongoing dialogue about Federal Courts. It can be invigorating and we
all can participate. I heartily forgive anyone who writes a turgid authoritative disquisition
105
106
Id.
Ann Althouse, Standing, in Fluffy Slippers, 77 VA.L.REV. 1177 (1991).
Ann Althouse, Late Night Confessions in the Hart & Wechsler Hotel
47 Vand. L. Rev. 993 (1994)
in order to get tenure (but don’t expect me to read it). But to those of you who have won
academic freedom: exercise it. *1018
APPENDIX
As indicated in the text of my Essay, I use my own materials, consisting of edited text
of the cases cited below, accompanied by my original text, notes, and questions.
CHAPTER I: CLAIMING FEDERAL RIGHTS IN A SYSTEM OF FEDERALISM
A. The Model of Federal Court Primacy--Asserting Federal Rights in Federal Court: Monroe v. Pape, 365
U.S. 167 (1961).
B. Refusing to Defer to the State Court: Dombrowski v. Pfister, 380 U.S. 479 (1965).
C. The Competing Model of State Court Primacy--Abstention and Deference to the Adequate State Court:
Younger v. Harris, 401 U.S. 37 (1971).
D. Eschewing State-Based Deference--A Preference for Federal Courts or a Preference for Judge-made
Jurisdiction Doctrine?: Mitchum v. Foster, 407 U.S. 225 (1972).
E. Deference to State Courts/Deference to State Legislation: Moore v. Sims, 442 U.S. 415 (1979).
F. Avoiding Unnecessary Questions of Constitutional Law/Avoiding “Needless Friction” with State
Policies: Railroad Commission of Texas v. Pullman, 312 U.S. 496 (1941).
G. Deciding Questions of Constitutional Law and Avoiding Abstention: Hawaii Housing Authority v.
Midkiff, 467 U.S. 229 (1984).
H. Standing and Federalism-based Equitable Restraint: Los Angeles v. Lyons, 461 U.S. 95 (1983).
I. Habeas Corpus and Deference to the Adequate State Court: Stone v. Powell, 428 U.S. 465 (1976).
J. Do Federal Rights Require Federal Courts?: Allen v. McCurry, 449 U.S. 90 (1980).
K. Section 1983, Habeas Corpus, and the Question of Federal or State Court Primacy: Preiser v. Rodriguez,
411 U.S. 475 (1973).
CHAPTER 2: CLAIMING FEDERAL RIGHTS IN A SYSTEM OF SEPARATION OF
POWERS
A. The Role of the Judiciary "to say what the Law is": Marbury v. Madison, 5 U.S. 137 (1804).
B. Ripeness--An Early Take on the Right of Privacy: Poe v. Ullman, 367 U.S. 497 (1961).
C. Standing, Reapportionment, and the Warren Court: Baker v. Carr, 369 U.S. 186 (1962).
D. Standing, School Desegregation, and the Burger Court: Allen v. Wright, 468 U.S. 737 (1984).
E. Mootness--An Early Take on Affirmative Action: DeFunis v. Odegaard, 416 U.S. 312 (1974).
F. Recent Debate on Mootness: Honig v. Doe, 484 U.S. 305 (1988).
G. Standing in the United States Supreme Court: ASARCO, Inc. v. Kadish, 490 U.S. 605 (1989).
H. The Power of Congress to Affect Standing: Lujan v. Friends of Wildlife, 112 S.Ct. 2130 (1991).
CHAPTER 3: JURISDICTION IN CASES "ARISING UNDER" FEDERAL LAW
A. The Supreme Court and the State Courts: Martin v. Hunter's Lessee, 14 U.S. 304 (1816).
B. Congressional Control of Federal Court Jurisdiction:
Ex Parte McCardle, 74 U.S. 506 (1868).
United States v. Klein, 80 U.S. 128 (1871).
Sheldon v. Sill, 49 U.S. 441 (1851).
Webster v. Doe, 486 U.S. 592 (1988).
C. Should Congress Expand the Federal Judiciary?
D. The Constitutional Meaning of "Arising Under" Jurisdiction:
Osborn v. Bank of United States, 22 U.S. 738 (1825).
Textile Workers v. Lincoln Mills, 353 U.S. 448 (1957).
Ann Althouse, Late Night Confessions in the Hart & Wechsler Hotel
47 Vand. L. Rev. 993 (1994)
E. The Statutory Meaning of "Arising Under" Jurisdiction: Merrell Dow Pharmaceuticals v. Thompson,
478 U.S. 804 (1986).
F. The Role of the State Courts:
Howlett v. Rose, 110 S.Ct. 2430 (1990).
In the Matter of Sherman M. Booth, Supreme Court of the State of Wisconsin, June Term 1854.
Ableman v. Booth, 62 U.S. 506 (1858).
CHAPTER 4: THE CONUNDRUM OF THE ELEVENTH AMENDMENT
A. Background: Chisholm v. Georgia, 2 U.S. 419 (1794).
B. Theories of Interpretation: Hans v. Louisiana, 134 U.S. 1 (1890).
C. The History of a Legal Fiction:
Ex Parte Young, 209 U.S. 123 (1908).
Edelman v. Jordan, 415 U.S. 651 (1974).
Pennhurst State School & Hospital v. Halderman, 465 U.S. 89 (1984).
D. The Power of Congress to Abrogate State Immunity: Pennsylvania v. Union Gas, 490 U.S. 1 (1989).
E. The Effect on State Courts: Will v. Michigan, 491 U.S. 58 (1989).
CHAPTER 5: STRUCTURING THE CONTEXT FOR "SAYING WHAT THE LAW IS"
A. Habeas Corpus Review of the Rights-Limiting State Court--Part I: Fay v. Noia, 372 U.S. 391 (1963).
B. Supreme Court Review of the Rights-Limiting State Court: Henry v. Mississippi, 379 U.S. 443 (1965).
C. Supreme Court Review of the Rights-Expanding State Court: Michigan v. Long, 463 U.S. 1032 (1983).
D. Habeas Review of the Rights-Limiting State Court--Part II:
Coleman v. Thompson, 59 U.S.L.W. 4789 (June 24, 1991).
Teague v. Lane, 489 U.S. 288 (1989).
Butler v. McKellar, 494 U.S. 407 (1990).